No. 98-2304

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

___________________________________

NATIONAL FOREIGN TRADE COUNCIL,

Plaintiff-Appellee,

v.

FREDERICK LASKEY, in His Official Capacity as Secretary

of Administration and Finance of the Commonwealth of Massachusetts

and

PHILMORE ANDERSON, III in His Official Capacity as State

Purchasing Agent for the Commonwealth of Massachusetts,

Defendants-Appellants.

________________________________________

On Appeal from a Final Judgment of the United States

District Court for the District of Massachusetts

________________________________________

Brief of Amici Curiae Chamber of Commerce of the United States of America, Organization For International Investment, National Association of Manufacturers, United States Council for International Business, American Insurance Association, American Petroleum Institute, and American Farm Bureau Federation Supporting Affirmance

 

Of Counsel: Counsel of Record:

Robin S. Conrad Daniel M. Price

National Chamber Litigation Ctr., Inc. Powell, Goldstein, Frazer & Murphy LLP

1615 H Street, NW 1001 Pennsylvania Ave. NW

Washington, D.C. 20062 Washington, D.C. 20004

(202) 463-5337 (202) 347-0066

Jan Amundson

Quentin Riegel

National Ass'n of Manufacturers

1331 Pennsylvania Ave., NW

Washington, D.C. 20004

(202) 637-3058

Table of Contents

Table of Authorities

Statement of Amici Curiae

I. Identity and Interest of Amici Curiae

II. Authority to File

Summary of Argument

Argument

I. State and Local Selective Purchasing Sanctions Substantially and Unjustifiably Burden and Discriminate Against Interstate and Foreign Commerce

A. Scope of the Problem

B. Impact on Individual Companies and Workers

C. National Implications for the Business Community and Workforce

II. State and Local Selective Purchasing Sanctions Substantially and Unjustifiably Burden the Federal Government's Conduct of Foreign Economic Relations

III. Conclusion

 

Table of Authorities

Statement of Amici Curiae

1. Identity and Interest of Amici Curiae

The Chamber of Commerce of the United States of America ("U.S. Chamber") is the world's largest business federation, representing more than three million U.S. businesses and organizations of every size, sector, and region. While most of the country's largest companies are U.S. Chamber members, 96% of its members are small businesses with fewer than 100 employees. U.S. Chamber members transact business in all or nearly all of the United States, as well as in a large number of countries around the world. Currently, 85 American Chambers of Commerce abroad in 75 countries are affiliated with the U.S. Chamber. An important function of the U.S. Chamber is to advocate its members' interests in matters of national concern before the courts, the United States Congress, the Executive Branch, and independent regulatory agencies of the federal government.

The Organization For International Investment ("OFII") is the largest business association in the United States representing the interests of U.S. subsidiaries of international companies. OFII's member companies employ hundreds of thousands of workers in thousands of plants and locations throughout the United States. Members of OFII transact business throughout the United States, as well as in many foreign countries, and are affiliates of companies transacting business in countries around the world.

The National Association of Manufacturers ("NAM") is the nation's oldest and largest broad-based industrial trade association. Its nearly 14,000 member companies and subsidiaries, including 10,000 small manufacturers, employ approximately 85% of all workers in the U.S. manufacturing sector and produce more than 80% of the nation's manufactured goods. An additional 158,000 businesses are affiliated with the NAM through its Associations Council and National Industrial Council.

The United States Council for International Business ("USCIB") advances the global interests of American business both at home and abroad. As the U.S. affiliate of the International Chamber of Commerce, the Business and Industry Advisory Committee to the OECD, and the International Organisation of Employers, USCIB officially represents U.S. business positions both in intergovernmental bodies - such as the WTO, ILO, OECD, and U.N. system - and vis-à-vis foreign business communities and their governments. The USCIB addresses a broad range of policy issues with the objective of promoting an open system of world trade, finance, and investment. The USCIB membership consists of some 300 global corporations, professional firms, and business associations.

The American Insurance Association ("AIA") is a trade association representing more than 300 companies writing property and casualty insurance throughout the United States and around the world. AIA member companies are affiliated with more than 79,000 independent insurance agents in the United States. The purposes of AIA are to promote the economic, legislative, and public standing of its members, to provide a forum for discussion of policy problems of common concern to its members and the insurance industry, and to serve the public interest by participating in litigation that is of significance to the insurance industry.

The American Petroleum Institute ("API") is a non-profit trade association representing over 400 members involved in all aspects of the petroleum industry, including exploration, production, refining, transportation, and marketing. Many of API's members conduct business in foreign countries, and consequently have a direct interest in assuring that access to foreign markets is not unduly restricted by U.S. state and local regulations. In order to ensure that the United States continues to have diverse and ample sources of energy supplies, energy companies must be able to explore new frontiers, and to participate in international trade and investment.

The American Farm Bureau Federation ("AFBF") is comprised of Farm Bureaus in all fifty states, Puerto Rico, and nearly 2,800 counties. With a membership approaching five million families, the AFBF is the nation's largest farm organization. Founded in 1919, AFBF's primary activities include lobbying, public relations, litigation, issue analysis and research, and personal and professional development of member farmers and ranchers. America's farmers have vital interests in the free flow of U.S. agricultural products in foreign commerce.

In aggregate, the organizations filing this brief represent a substantial proportion of all entities doing business in the United States, and, indirectly, much of the U.S. workforce. The amici are umbrella organizations charged with representing the legal and policy interests of their business members in matters of national import - such as this litigation. As described in this filing, the Massachusetts "Burma" statute and other similar state and local economic sanctions laws have had, and will continue to have, a serious financial impact on many of the companies and workers represented by amici.

2. Authority to File

Amici curiae the U.S. Chamber, OFII, NAM, USCIB, AIA, API, and AFBF file this brief supporting affirmance of the judgment of the District Court with the consent of all parties to this appeal, pursuant to Fed. R. App. P. 29(a), and as evidenced by the letters of consent attached to this brief at Exhibit A.

Summary of Argument

The Commonwealth of Massachusetts has wielded the substantial economic power of its procurement budget to implement its own foreign policy agenda. The state's actions have the explicit purpose and direct effect of imposing a secondary boycott on companies engaged, however remotely, in commerce with Burma, and thus fragmenting the flow of interstate and foreign commerce. Because of the Massachusetts Burma Law and other similar measures - more than twenty more state and local selective purchasing sanctions, with others waiting in the wings - companies are forced to forfeit either international markets or state and local government procurement opportunities. The proliferation of these measures also impairs the ability of the United States to speak coherently and forcefully in foreign affairs. The Massachusetts Burma Law thus substantially burdens and discriminates against interstate and foreign commerce, and impermissibly intrudes upon the federal government's conduct of foreign relations.

The pursuit of foreign policy objectives, and the impairment of foreign commerce as a means to that end, are not and cannot be among the prerogatives of the several states. The Constitution entrusts the nation's diplomatic and foreign economic relations exclusively to Congress and the President - that is, to national policymakers. The District Court correctly upheld this bedrock principle of our system of government, and amici curiae respectfully urge this Court to do the same.

Argument

This appeal presents the constitutional question of whether state and local governments may properly implement their own foreign policy agendas, and whether they may substantially burden not only foreign and interstate commerce but also the entire country's foreign relations in order to do so. Amici contend that the District Court correctly answered this question in the negative, and they respectfully urge this Court to do the same.

Before turning to the merits of this appeal, it is important to clarify what this case is not about. Specifically, it is not about the propriety of the Burmese government's political and labor practices. To the contrary, amici are in full agreement with the Commonwealth of Massachusetts and others that the Government of Burma has violated basic political and human rights norms and that its conduct should be roundly condemned. Nor is this case about the propriety of the federal sanctions on trade and investment with Burma that have been duly considered and adopted by Congress and the President.

The sole point of contention - and the sole issue in this appeal - is whether the Commonwealth of Massachusetts may condemn Burmese government practices through selective purchasing laws and the imposition of primary and secondary boycotts. Massachusetts, like more than twenty other state and local jurisdictions, has opted to implement an independent foreign policy by imposing trade sanctions not only on Burma and Burmese entities directly but also on any other persons or entities with business ties to Burma. While the abhorrence of Burmese government practices underlying these sanctions is understandable, in amici's view these laws do grave damage to the free flow of interstate and international commerce, to the federal government's ability to adopt and implement a unified foreign policy, and to the national political process for foreign policy formulation contemplated by our long-established notions of federalism. Massachusetts has overstepped its authority to legislate in its own citizens' public interest by legislating instead in a manner that affects (and even injures) the public interest of all U.S. citizens in international commerce and in a coherent national foreign policy.

1. State and Local Selective Purchasing Sanctions Substantially and Unjustifiably Burden and Discriminate Against Interstate and Foreign Commerce

The parties in this proceeding have addressed at length the legal issues raised by this appeal. Amici believe that the legal arguments against permitting state and local governments to promote their own foreign policies are clear and should be beyond question. In this brief, amici wish to focus particular attention on the business and economic implications of any contrary determination.

1. Scope of the Problem

This case is not just about the Commonwealth of Massachusetts's Burma Law - the stakes are much higher. Massachusetts is but one of more than twenty sub-federal jurisdictions around the country that as of this writing have already adopted Burma sanctions laws. Others include New York City, San Francisco, and Cambridge, and just a few months ago, the City of Los Angeles became the latest city to adopt its own Burma sanctions policy. Other sub-federal jurisdictions are believed to be awaiting a final decision in this case before moving to adopt sanctions of their own.

Nor is this case solely about laws directed at Burma. In recent years counties, cities and other local governments across the country have also considered and/or adopted procurement restrictions and other trade sanctions targeting companies doing business with countries as diverse as Switzerland, China, Saudi Arabia, Northern Ireland, Nigeria, Indonesia, Egypt, Pakistan, Turkey, Sudan, North Korea, Iraq, Morocco, Laos, and Vietnam.

Should this Court fail to affirm the judgment of the District Court, and hold that it is within the authority of sub-federal governments to impose sanctions intended to fragment U.S. and world markets in order to further their own foreign policy objectives, more such laws will surely follow. There are more than 39,000 sub-federal governments - 39,000 states, counties, municipalities, townships, and towns - within the borders of the United States. If the Massachusetts Burma Law is allowed to stand, there is no reason why thousands more might not soon stand beside it.

Moreover, there is no basis for believing that states and localities employing selective purchasing sanctions will confine themselves to the prosecution of foreign regimes that engage in human rights abuses. Any international cause could, with the support of a vocal local constituency, become the impetus for state and local government expressions of foreign policy. One can easily envision selective sanctions prohibiting or curtailing purchases from companies who do business with

• countries whose forestry practices are unsustainable,
• countries that do not adequately penalize the misappropriation of intellectual property,
• countries that are not signatories to the U.N. Framework Convention on Climate Change,
• countries that permit or, alternatively, outlaw abortion,
• countries that do not conduct democratic elections, or
• countries that, like the United States, have not signed international conventions on land mines, nuclear test bans, or the proliferation of chemical and biological weapons.

Certainly any of these causes may reflect the moral sensibilities of a given locality's citizenry. But there is no logical limit to the range or number of international causes that may be deemed worthy by a state or locality at any given point in time.

It is also critical to take into account the uniquely American context in which this question arises. The United States is especially vulnerable to a proliferation of local measures that are targeted at international issues. Our diverse population is drawn from almost as many nationalities and ethnicities as are found on the globe. But though the country as a whole may rightly call itself a "melting pot," affinity clustering remains common at the local level. Clustered local populations with common interests can readily "capture" the attention - and support - of local government. This is all well and good to the extent that the local government serves local needs and pursues local interests. It is likewise appropriate for local representatives to communicate such local views at the national level in Congress and the federal policymaking process - where they may be balanced against one another to produce federal government action in the national interest. State and local economic sanctions, however, vault local interests directly onto the national stage, causing national consequences without taking national interests into account.

If any locally powerful single-interest group can cause the local government to enact a selective purchasing law to implement a foreign policy agenda, then we should expect such laws to proliferate, and we will have to be prepared for their nationwide negative effects to multiply exponentially. More concretely, this uniquely American context gives rise to a serious risk of inconsistent local sanctions. Were sub-federal sanctions laws held to be constitutional, some localities could well enact government procurement laws favoring one side in the Middle East or Kashmir controversies, for example, while other jurisdictions might pass laws favoring the opposing side. The Supreme Court, in striking down discriminatory state statutes, has explicitly recognized this danger of multiple, inconsistent state regulations.

1. Impact on Individual Companies and Workers

Consider the difficulties that just two state and local sanctions laws can create. Just last year, New Jersey proposed to enact sweeping prohibitions on procurement from companies doing business with Switzerland or Swiss companies, while the state of Maryland contemplated selective purchasing sanctions against Nigeria. Were those proposals to become law, a company doing business with Switzerland and Nigeria would not be able to do business with New Jersey and Maryland. A company doing business with Switzerland but not Nigeria could do business with Maryland but not New Jersey, and vice versa for a company doing business with Nigeria but not Switzerland. Conversely, a company doing business with New Jersey and Maryland could not do business with Switzerland or Nigeria, and so on. These complexities mount with each additional state or local sanction heaping on more dizzying permutations, further segregating the U.S. and foreign markets, and adding greater compliance burdens. As the Supreme Court recently observed: "Avoiding this sort of 'economic Balkanization,' and the retaliatory acts of other States [and foreign nations] that may follow, is one of the central purposes of our negative Commerce Clause jurisprudence." Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, ___, 117 S. Ct. 1590, 1599 (1997) (citation omitted).

It would be a mistake to underestimate the magnitude of the economic impact that sanctions have on the international business community. These procurement restrictions are far more than mere symbolic statements or rhetorical flourishes. They directly affect billions of dollars a year in business with state and local governments around the country. Although statistics tabulating government procurement expenditures alone are not readily available, the scale or order of magnitude of that market is clear. Over 30% of the fifty state governments' expenditures, or roughly $270 billion in 1995, went to non-wage payments for current operations - a large proportion of which can be assumed to have reached the private sector through government contracting. Similarly, local governments' non-wage current operations expenditures totaled $284 billion in that same year. The Massachusetts Burma Law alone restricts bidding on some $2 billion in state government purchases of goods and services.

U.S. and multinational companies thus face difficult choices. They may participate freely in the world market, where nearly $6 trillion in trade and investment changes hands each year, or they may curtail those activities in order to remain eligible for state and local procurement opportunities in the United States. The countries that have already been targeted by proposed or enacted sub-federal sanctions alone do at least $785 billion annually in trade in goods and services, while, on the other hand, the U.S. state and local procurement market also involves hundreds of billions of dollars in sales. Because of the Massachusetts Burma Law and other similar measures, companies must choose between them. The discriminatory impact on foreign commerce is manifest.

Multiplying state and local sanctions regimes cause obvious confusion for those engaged in interstate and foreign commerce, and give rise to very practical problems. Individual companies' competitiveness is harmed: At any moment - whenever yet another state or locality chooses to enact selective purchasing sanctions - amici's members may be forced to make this difficult choice between pursuing international business activities and remaining eligible for U.S. state and local government procurement contracts. As a result, they risk becoming known as unreliable business partners in the eyes of foreign companies and foreign governments, and they suffer a corresponding competitive disadvantage when they attempt to do business abroad.

Furthermore, for even the most sophisticated companies it is very difficult and costly even to track - much less to comply with - sanctions-related developments in all fifty states and the tens of thousands of cities and towns that might be persuaded to act in this arena. Sub-federal sanctions ordinances have not been limited to the largest American localities, but have cropped up at all levels across the country.

The economic impact of local selective procurement statutes is clearly substantial, and will only continue to grow as additional state and local governments adopt their own sanctions laws.

 

2. National Implications for the Business Community and Workforce

The Commonwealth of Massachusetts would have this Court believe that the Massachusetts Burma Law merely implements a local purchasing preference, much like a procurement ordinance favoring the purchase of recycled products. In truth, however, this procurement sanctions law is neither so mundane nor even remotely so benign. Massachusetts has enacted an economic sanction against a foreign government, has employed a secondary boycott against businesses worldwide, and is using its purchasing laws as both carrot and stick in an effort to implement a foreign policy agenda.

It should be clear beyond doubt from a review of the record that both the intent and the effect of the Commonwealth's Burma sanctions law has been to influence business activities abroad (namely, in Burma) and, through such sanctions, to influence the conduct of the Burmese government. This purpose is reflected

• in the challenged statute itself, which imposes a secondary boycott on companies doing business with Burma without regard to where those companies are located, the level of their business activities in Burma, or the origin of the products to be sold to the state;
• in the statute's legislative history, which clearly evinces the sponsors' intention to pressure Burma to modify its domestic policies; and
• in the broader campaign pursued by sanctions advocates, reflected in companion procurement laws adopted (at this writing) by more than twenty other state and local jurisdictions.

State and local sanctions laws carve up the U.S. and international markets. As the Commonwealth intended, the Massachusetts Burma Law forces companies to choose between doing business with Massachusetts or in Burma. In fact, it reaches even more broadly than that, barring procurement not only from companies that directly transact business with Burma, but also from companies whose corporate affiliates (however remote, and over which they may have no control) have some minimal economic tie to Burma. The law thus presents some companies with no choice at all; their ability to do business with Massachusetts, or the penalty of forfeiting that business, is at the mercy of their corporate parents' and siblings' international business plans.

Notably it is U.S. companies and the U.S. economy - not foreign companies or foreign countries - that have the most to lose if state and local selective purchasing sanctions continue to proliferate. American companies are among the most globally active, and the increase in U.S. exports has brought considerable growth to the U.S. economy. The burden of complying with an ever more complex array of local sanctions will fall chiefly upon them. United States companies and exports will also be the principal targets of any retaliatory action.

 

1. State and Local Selective Purchasing Sanctions Substantially and Unjustifiably Burden the Federal Government's Conduct of Foreign Economic Relations

The Commonwealth of Massachusetts enacted its selective purchasing law with a clear and avowed purpose: to punish a foreign government and pressure that foreign government to modify its domestic policies. See NFTC v. Baker, 26 F. Supp. 2d at 291 (discussing legislative history). Indeed, the purpose and intended effect of the Massachusetts Burma Law is not merely to burden and discriminate against foreign commerce with Burma, but to halt it entirely. While the Commonwealth's concern for the well-being of the people of Burma is laudable, it is not the state's prerogative to craft and implement its own foreign policy. The conduct of foreign affairs is a delicate responsibility expressly committed by the Constitution to the President and Congress.

The Massachusetts Burma Law alone has seriously impaired federal foreign policy and the United States' dealings with foreign governments. As noted, however, that law does not stand alone. It is but one out of some forty enacted or recently proposed state and local sanctions, and only a precursor of the many local foreign policy initiatives sure to follow should this Court not affirm the judgment of the District Court.

Proliferating sub-federal sanctions pose a direct threat to the federal government's ability to conduct foreign policy. This is not merely an academic threat; it is very much a practical one. The scope and magnitude of this danger were recently outlined by one of the Clinton Administration's principal foreign economic policy architects, Assistant Secretary of State for Economic and Business Affairs Alan P. Larson, in a speech before none other than the Council of State Governments. This speech, delivered after the District Court's decision, warrants particularly close attention:

I am not a lawyer, and I am not here to discuss the questions that have been raised as to the constitutionality of state and local sanctions measures. I would, however, like to draw on my personal experience to discuss some of the very real ways in which state and local sanctions can disrupt the Executive Branch's conduct of foreign policy: (1) such measures may clash with Presidential foreign policy initiatives, undermining the ability of the United States to speak with one voice on foreign policy matters; (2) they can complicate efforts to build coalitions with our allies; (3) they can raise allegations of violations of our international legal obligations; and (4) they can have very significant costs for states that are trying to attract investment.

Policy toward Burma illustrates some of these points. Congress and the President carefully tailored the precise measures the federal government would impose in seeking to influence change in Burma. Those measures included diplomatic and economic actions, including a Presidential executive order banning new investment in Burma by U.S. persons. These measures reflect a considered federal government decision not to impose much more rigorous economic sanctions and thereby to maintain some level of economic engagement with Burma in order to further our foreign policy objectives there. The President's Executive Order took care to avoid infringing on the prerogative of other countries to regulate the activities of firms organized under their laws. The sanctions called for in the Massachusetts law are very different: they restrict procurement from companies - U.S. or foreign - that do business in or with Burma.

The Massachusetts Burma law has, in my experience, complicated our ability to build coalitions with our allies to affect the changes in policy that both we and the sponsors of the Massachusetts statute seek. We depend on partners like the EU for cooperation in pressing other governments to change policies harmful to our common interests. We also welcome European investment in the U.S. and value Europe as a market for U.S. exports. The Massachusetts Burma law, however, has become a serious bilateral irritant in our relations with the EU. The EU objected strenuously to the impact of the law on European firms. Although the U.S. continues to push for multilateral cooperation on Burma, the EU's opposition to the Massachusetts law has meant that US government high level discussions with EU officials often have focused not on what to do about Burma, but on what to do about the Massachusetts Burma law . . . . Based on this experience, it is my judgment that the law has hindered our ability to speak with one voice on the grave human rights situation in Burma, become a significant irritant in our relations with the EU and impeded our efforts to build a strong multilateral coalition on Burma where we, Massachusetts and the EU share a common goal.

As Assistant Secretary Larson made clear, the proliferation of economic sanctions at the state and local level - however well-intentioned on the part of individual localities - has had significant and harmful consequences for our nation's foreign relations.

In this respect, measures like the Massachusetts Burma Law often do more harm than good to the very causes they hope to promote. By acting in a manner inconsistent with the measures adopted by Congress and the President, Massachusetts has unbalanced the carefully calibrated policy devised by the United States in response to Burma's abuses. It is notable, for example, that Massachusetts's sanction is triggered by the very type of business activity that is expressly permitted by the federal law directed at Burma. And by antagonizing U.S. trading partners, the Commonwealth's action has made it more difficult for the United States to win their support and move toward an effective multilateral policy. Massachusetts's unilateral effort to increase pressure on Burma has had the practical effect of reducing the international pressure that can be brought to bear on that regime. If sporadic and uncoordinated state and local actions cause the United States to be viewed as unreliable and unpredictable in international affairs, its pleas for collective action - such as collective condemnation of human rights abuses in Burma - will fall on deaf ears.

This burden on the United States' ability to design and conduct a rational, calibrated foreign policy affects more than the niceties of diplomacy. It has very real effects on people and businesses. The people of Burma are worse off to the extent that U.S. policies seeking to aid them are undermined, and to the extent that they do not benefit from the liberalizing effects of trade and investment. The people of Massachusetts are worse off to the extent that businesses avoid investing in that state rather than forfeit international business, or are precluded from offering better, cheaper goods and services on government contracts. And people and businesses across the United States and around the world are worse off to the extent that soured relations with trading partners and allies reduce the prospects for agreements that open foreign markets, and for coordinated international economic policies. Furthermore, each additional state and local sanctions law increases the risk of foreign retaliation not just against the offending locality - that is, for example, not just against Massachusetts businesses or Massachusetts products - but against "the Nation as a whole."

Its good intentions notwithstanding, Massachusetts's pursuit of an independent foreign policy on Burma has imposed a serious - and unconstitutional - burden on foreign commerce and U.S. foreign policy. The consequences of the Massachusetts Burma Law reach far beyond the borders of the state that enacted it, and for that reason, cannot be allowed to stand consistent with our federal form of government.

2. Conclusion

For the foregoing reasons, amici curiae U.S. Chamber, OFII, NAM, USCIB, AIA, API, and AFBF respectfully ask this Court to affirm the judgment of the District Court that the Massachusetts Burma Law is unconstitutional. The statute impermissibly disrupts and fragments interstate and foreign commerce, and is an illegitimate intrusion on Congress's and the President's exclusive authority over the foreign affairs of the United States.

 

Dated: Washington, D.C.

March ___, 1999

Respectfully submitted,

_________________________

Daniel M. Price

Powell, Goldstein, Frazer & Murphy, L.L.P.

1001 Pennsylvania Ave. NW

Washington, D.C. 20004

(202) 347-0066

Of counsel:

Robin S. Conrad

National Chamber Litigation Center, Inc.

1615 H Street, NW

Washington, D.C. 20062

(202) 463-5337

Jan Amundson

Quentin Riegel

National Association of Manufacturers

1331 Pennsylvania Ave. NW

Washington, D.C. 20004-1790

(202) 637-3058

Certificate of Compliance

I, Daniel M. Price, counsel for amici curiae U.S. Chamber, OFII, NAM, USCIB, AIA, API, and AFBF hereby certify that the foregoing brief (exclusive of portions exempted pursuant to Fed. R. App. P. 32(a)(7)(B)(iii)) contains ________ words in proportionally spaced 14 point Times New Roman font, and accordingly complies with the type-volume limitations of Fed. R. App. P. 32(a)(7).

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